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Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity Previous drafts of the articles on State responsibility had introduced the concept of “international crimes”, which included serious breaches of certain environmental obligations. However, that concept was subsequently dropped and does not appear in the final outcome of the ILC’s work.23 It is also notable that “a State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects.”24 The rules on State responsibility do not define the obligations relating to geoengineering in the sense of determining which activities are permitted or prohibited. Instead, they provide a basic legal framework for geoengineering activities that breach international law. In the absence of specific rules, the rules on State responsibility provide a general framework that sets out the legal consequences of geoengineering activities that breach international obligations. State responsibility does not as such require fault or negligence of the State. The conduct required or prohibited and the standards to be observed depend on the obligation in question. A regulatory regime may consider developing specific rules and standards for all or particular geoengineering activities in this regard. The consequences of State responsibility include legal obligations to cease the activity, to offer appropriate assurances and guarantees of non-repetition, if circumstances so require, and to make full reparation for the injury caused.25 In view of the diverse geoengineering concepts and their potentially extensive and global impacts, a regulatory regime may consider specific legal consequences flowing from breaches of international obligations regarding geoengineering. There is no uniform terminology in international law on the meaning of “liability”. In this study, the term “liability” refers to legal obligations on private actors—in contrast to the concept of and rules on State responsibility. States are not as such responsible for acts of private actors. However, a State might have to address private actors in order to fulfil its own obligation.26 A State could be in breach of an obligation if it failed to take necessary measures to prevent effects caused by private actors (see above on State responsibility). The extent to which a State has to address private actors in order to fulfil its own obligation depends on the obligation in question. For instance, the duty to prevent transboundary harm (see below) requires the State to exercise due diligence. A State may be failing to exercise due diligence and thus be in breach of this obligation if it fails to exercise any legal or factual control over its private actors regarding transboundary harm. In addition, a State can be under an explicit and specific obligation to address private actors. Specifically, international law can impose a duty on States to provide, in their internal law, that non-State actors are liable for certain acts. (For instance, the 2010 Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety requires States to address private actors through domestic rules on liability.) However, there is no general obligation on States to do this. There are also international compensation schemes where non-State actors pay into a pool (e.g., oil pollution compensation schemes). However, there is no general obligation on States to do this. Given the potential impact of such activities, the existing obligations on States might be insufficient in requiring States to address private actors. 23 In its work on State responsibility, the International Law Commission had considered whether a breach of a ius cogens rule should be referred to as a separate category of “international crime”, as opposed to mere “international delicts”. In the 1970s it proposed that an international crime should include “a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas”. However, it subsequently dropped the concept of international crimes. 24 ILC, on draft articles on responsibility of States for internationally wrongful acts, with commentaries, in UN Doc. A/56/10 (Report of the International Law Commission on the work of its fifty-third session (23 April-1 June and 2 July-10 August 2001); p. 39. 25 Articles 30 and 31 of the draft articles on State responsibility. 26 Cf. article 139 of UNCLOS. 114
Part II: The Regulatory Framework for Climate-related Geoengineering Relevant to the Convention on Biological Diversity 2.2 PREVENTION OF TRANSBOUNDARY HARM TO THE ENVIRONMENT All States are under a general obligation to ensure that activities within their jurisdiction or control respect the environment of other States or of areas beyond national jurisdiction or control. Listed as Principle 2 of the Rio Declaration,27 and as Article 3 of the Convention on Biological Diversity, the rule has become customary international law.28 A State in breach of this rule could be held responsible by other States under the customary rules of State responsibility. The duty to respect the environment of other States or of areas beyond national jurisdiction or control does not mean that any environmental harm, pollution, degradation or impact is for that reason generally prohibited.29Although the rule has long been established, it has so far very rarely been the subject of disputes which could have clarified its precise content. In the case of an alleged breach of the duty to not harm the environment, establishing responsibility of a State for geoengineering would require several elements: • The geoengineering activity would have to be attributable to the State in question. Depending on the particular geoengineering activity and its scale, attribution to a State might be possible using global information systems and technology such as satellite observation. • The particular geoengineering activity would have to cause a particular harm to the environment of other States or of areas beyond national jurisdiction or control. The causal link would most likely be very difficult to establish. For instance, alleged environmental harm could include changes in precipitation patterns,30 followed by floods or droughts. A potential claimant State would have to establish a causal link between the particular geoengineering activity and changes in precipitation, as well as between those changes in precipitation patterns and specific environmental harm.31 Procedural obligations regarding transparency, and global observation and monitoring systems, could play an important role in this respect. In view of the extent of the potential damage, reversing the burden of proof is being discussed on the basis of the precautionary principle/approach (see also section 2.4 below). For instance, a State to which a geoengineering activity is attributable would have to rebut the assumption that it changed the earth’s albedo and that this caused the alleged environmental harm. In the recent Pulp mills on the river Uruguay case, the International Court of Justice (ICJ) accepted that a precautionary approach “may be relevant” in the interpretation and application of the treaty in question. However, the court also stated that “it does not follow that it operates as a reversal of the burden of proof ”.32 The wording of the court is not clear as to whether this applies to the specific case or generally excludes a reversal. Some national laws and cases do make this shift in the burden of proof. For example, in Australia, the case of Telstra Corp v Hornsby Shire Council33 applied the precautionary principle to this effect. It was found that where there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty, the precautionary principle will be activated and “a decision-maker must assume the threat of serious or irreversible environmental damage is … a reality [and] the burden of showing that this threat … is negligible 27 31 ILM 876 (1992); cf. Principle 21 of the preceding 1972 Declaration of the UN Conference on the Human Environment (Stockholm Declaration), 11 ILM 1416 (1972). 28 ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion—General Assembly), ICJ Rep. 1996, 22, para. 29; ICJ, Case concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Rep. 1997, 7, para. 53; ICJ, Case concerning pulp mills on the river Uruguay (Argentia v. Uruguay), judgment of 20 April 2010, para. 193 www.icj-cij.org. Note that the ICJ’s formulation is “activities within their jurisdiction and control”. 29 Cf. Birnie/Boyle/Redgwell (2009) p. 142. 30 Policy Statement of the American Meteorological Society on geoengineering the climate system, adopted by the AMS Council on 20.07.2009, http://www.ametsoc.org/policy/2009geoengineeringclimate_amsstatement.html. 31 Bodle (2010), p. 103. 32 ICJ, Pulp mills on the river Uruguay, para. 164. 33 New South Wales Land and Environment Court, 2006. 115
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